Hampshire County Council v Secretary of State for Environment, Food and Rural Affairs & Ors

For the purposes of paragraph 6 of schedule 2 to the Commons Act 2006, land falls within the “curtilage of a building” only where it is so intimately associated with that building as to form part and parcel of it. The question is not whether the land and building together form a functional unit devoted to the same enterprise.

Relevant considerations may include physical layout, ownership, past and present use or function, relative size and ancillarity. They must, however, be applied to the relationship between the claimed curtilage land and the particular building. A broad “single unit” approach appropriate to listed-building control cannot simply be imported into the deregistration provisions. A decision-maker who assesses relative size by reference to the combined function of the land and building, or treats each as ancillary to the other, commits an error of law.

Yateley Common had been registered as common land under the Commons Registration Act 1965. Blackbushe Airport Limited applied under paragraph 6 of schedule 2 to the Commons Act 2006 to remove approximately 46.5 hectares of airport operational land from the register.

The Inspector found that the land had been provisionally registered and that the registration had become final. He also accepted that the terminal building and café satisfied the statutory requirements concerning land covered by a building. He concluded that the remaining operational land was within the curtilage of the terminal building because it formed part of the same operational airport.

Hampshire County Council sought judicial review, arguing that the Inspector had applied the wrong curtilage test and had misunderstood ancillarity. The central issue was the proper meaning and application of “the curtilage of a building” in paragraph 6(2)(b).

1. Statutory context. Parliament had balanced the interests of commoners and public users against the interests of landowners. The court could not adopt a restrictive or expansive meaning of “curtilage” merely because it considered that balance preferable. The absence of compensation did not justify a different construction.
2. Correct curtilage test. The phrase “the curtilage of a building” requires the decision-maker to ask whether the relevant land forms part and parcel of the particular building to which it is related. It is not enough that the land and building together form a single operational unit, integral whole or entity devoted to the same function. The latter approach confused the curtilage of a building with the curtilage of an institution, enterprise or use.
3. Relevant considerations. Physical layout, ownership, use or function, relative size and ancillarity may be relevant. Relative size must be assessed by comparing the claimed land with the relevant building, not by asking whether the overall land area is proportionate to the function of the combined airport. The “smallness” of curtilage is not an absolute requirement, but that does not permit an area of land plainly excessive in relation to the building to be treated as its curtilage merely because it is required for the wider enterprise.
4. Ancillarity. Ancillarity is not a legal prerequisite, but if considered it must be applied correctly. The relevant question was whether the operational land was ancillary to the terminal building. It was illogical to hold that the land and terminal building were each ancillary to the other in relation to the same airport function.
5. Application and outcome. The Inspector adopted the impermissible “same unit” approach. His treatment of relative size and ancillarity was therefore legally flawed and materially tainted his conclusion that all operational land was within the terminal building’s curtilage. The decision dated 12 June 2019 allowing deregistration was quashed.

This was a first-instance judicial review in the Administrative Court. The Inspector’s decision dated 12 June 2019 was quashed.